Professional Documents
Culture Documents
REPORT TO
REVIEW OF
___________________________________
Clifford Stromberg
The Law Firm of Hogan Lovells US LLP
Washington, DC
May 2011
CONTENTS
Page
LIST OF CHARTS
The Chancellor asked Hogan Lovells to review the legal status of the Research
Foundation of SUNY (the “RF”), and its operational relationships with SUNY and the
SUNY campuses, including importantly SUNY’s four health science centers (“HSCs”),
which perform a large part of the research administered by the RF. We performed this
review during the period October 2010 - February 2011.
We relied on documents provided by the RF and SUNY, and our review was for
overall analysis only. We did not conduct “due diligence,” “discovery” or comprehensive
document review by any means. There may well be relevant documents and items of
information that were not brought to our attention and of which we are unaware.
C. “Benchmarking” Comparisons.
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important relationship and the vitality of each is essential to the other. We hope that this
Report will assist them to strengthen their relationship.
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EXECUTIVE SUMMARY
• This achievement is even more impressive when one considers that some of
the leading competing research institutions have a much more focused
research portfolio than does SUNY. For example, Johns Hopkins is
preeminent in biomedical research in part because the University is
fundamentally focused on that arena, and recruits and devotes most of its
resources to that goal. Likewise, MIT is overwhelmingly invested in physical
sciences, computing and engineering. Iowa is deeply invested in agricultural
and plant genomics research. But SUNY’s research -- administered by the RF
-- includes major components in areas as diverse as medical research,
biofuels, nanoscience, chemical engineering, professional training, and
physics.
• The RF’s task is even more challenging because, unlike many major research
University systems that are centralized on one or two campuses, SUNY
requires the RF to support research and technology transfer enterprises
across 64 campuses, including health science centers, several other University
centers and doctrinal research institutions, as well as a large number of
University colleges, and technology college campuses.
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educational objectives by any other means. However, this naturally diffuses
the RF’s focus.
• In light of these and other challenges, the overall achievements of the SUNY-
RF relationship are impressive. Indeed, virtually every leader we interviewed
stated that given the complexity and delay attendant to the New York State
contracting process, the RF is indispensable, and without its competent
discharge of critical functions, SUNY’s research enterprise virtually could not
operate and SUNY would fall increasingly behind other great Universities.
Despite these achievements, it is also obvious that there are strains and areas of
dysfunctionality in the SUNY-RF relationship that impede SUNY’s success and its ability
to maximize its efficient use of resources. The RF, by its charter, has only one set of
customers--the members of the SUNY system. Under the RF’s charter, its sole mission
is advancing the research goals of SUNY, i.e. to perform functions “of benefit to and in
keeping with the educational purposes and objects of [SUNY].” 1/ Since SUNY alone
can define its goals, the RF should be highly attentive to what SUNY desires. Indeed,
the 1977 SUNY-RF Agreement states at the outset that “the Foundation’s sole purpose
is to serve the University.” Yet the leaders of SUNY campuses, as well as leaders of
SUNY Central Administration, frequently voice the belief that the RF does not act like a
service organization devoted to the priorities of SUNY. Rather, it aspires to and
increasingly does chart its own independent course, regardless of SUNY’s views. And
among the campus “customers” we interviewed, almost all said they rated the RF’s
performance overall as only “pretty good,” but not “very good.” On a scale of 1 to 10,
they generally rated its overall performance in the range of “5 or 6.” It should be
possible to do better.
1/ The RF Charter makes clear that its only purposes are to advance the missions of SUNY. Its
purposes are:
“(a) To assist in developing and increasing the facilities of State
University of New York to provide more extensive educational opportunities for
and service to its students, faculty, staff and alumni, and to the people of the
State of New York, by making and encouraging gifts, contributions and donations
of real and personal property to or for the benefit of State University of New York;
(b) To receive, hold and administer gifts or grants, and to act without
profit as trustee of educational and charitable trusts, of benefit to and in keeping
with the educational purposes and objects of State University of New York; and
(c) To finance the conduct of studies and research in any and all fields
of the arts and sciences, of benefit to and in keeping with the educational
purposes and objects of State University of New York...” (RF Charter (1951, as
amended 2009), p. 1 (emphasis added)).
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We probed extensively. Naturally, there were differences of viewpoint within and
across the campuses. But overall, based on our review, the RF’s functioning in various
areas of activity can be assessed as follows:
Overall, New York State’s portion of national sponsored research declined from
10% in 1980 to about 8% today. Part of the reason for the decline is the relative paucity
of New York State resources made available for faculty recruitment and program support,
but there are organizational deficits as well. Contrary to what the RF at times says and
some believe, the RF really performs no significant role--nor is there any campus desire
that it do so--in crafting research priorities, or identifying sources of funding, or
developing new sponsor relationships. In reality, the RF’s role begins when there is a
grant award. Another important point is that the campuses historically have been
dissociated from one another, with few research interactions with one another. This
impedes SUNY since research teams on one campus who need a special capacity that
is lacking, but perhaps exists at another SUNY campus, may not know it, and therefore
their proposed team may not be as strong as it could be. Recent initiatives like the “Find
a Scholar” on-line instrument hold promise that they will enable SUNY researchers to
work together more effectively and the RF is supporting this effort. But it is still a major
SUNY deficiency that strong faculty who reside in different campuses are not “virtually”
united in ways that would increase success in obtaining grants.
The campuses also say the RF is needlessly difficult and challenging in “second
guessing” them about employee pay levels and HR issues. The RF says that as a single,
unified employer, it must achieve pay “comparability” and cannot make unwarranted
exceptions. The RF also says it is responsive to campus concerns. It notes that it has
invested heavily in improving IT systems and believes it is becoming more effective.
The campuses also believe the RF’s 39% fringe benefit rate is too high and may
cause them to be non-competitive on some grants. The RF disagrees, given SUNY’s
own 44% fringe rate. There is no readily apparent solution.
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In contrast, there seems to be widespread agreement that the RF performs well
the core functions of grant administration and fund accounting.
4. Compliance. In general, the campuses are responsible (as the grantee) for
scientific oversight and accountability, while the RF is responsible for financial
management and accountability. Unfortunately, a variety of functions and scenarios fall
between these functions, or traverse them. Hence, it is disturbingly unclear who bears
responsibility for various elements necessary for accurate effort reporting, or what
happens if purchasing decisions alter materials or equipment and adherence to the
research protocol, or how the campuses and RF dovetail on data security. This lack of
clarity poses potential risks for SUNY. It is not evident to stakeholders that the RF has a
strong compliance function. RF disputes this, but concedes that it has begun new
initiatives to strengthen compliance, including a new on-line certification application.
Compliance issues merit greater attention.
But many of the reasons for poor performance do relate to the RF. Many
campuses cite: (a) the RF’s lack of strategic tech transfer vision or strategy; (b) the RF’s
failure to consult campuses and instances of “selling cheap” very promising SUNY
inventions; (3) the RF’s lack of high-level tech transfer expertise from industry; and (d)
the RF’s lack of entrepreneurial “culture”. There is probably more than enough criticism
to go around, but this clearly is an area that requires more attention. Other institutions
have effectively used “gap” funding vehicles, technology incubators and an investment
fund. SUNY and the RF traditionally have lacked any substantial “gap” funding vehicle.
The SUNY-RF incubators are viewed as having had only modest success. The RF
indicates that it is now starting a technology incubator for this purpose with $1 million.
An investment fund is just now being developed. It appears that SUNY does pay a
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competitive share of IP revenues to faculty investors. The main problem is that the
licensing revenue pipeline as a whole is far too thin.
7. Affiliate Entities and Ventures. This is another area of problems and lost
opportunities. It is unfair that frequently, when a SUNY component cannot do directly
something it wants, it simply says, “Let the RF do it.” Hence, the RF feels itself
involuntarily drawn into many ventures (Fuller Road, Buffalo 20/20, BioBAT) that may
not be part of its “core” scientific grant administration functions. The RF says it is just
trying to help when SUNY asks. But the main problem is not whether the RF
participates but how. It is shocking how many senior campus leaders say that in
negotiating these ventures, the RF and its outside counsel “ignore SUNY’s goals,”
“strong arm” or “intimidate” SUNY--which is supposed to be the sole entity that the RF
serves. It is widely perceived that the RF has “its own agenda,” tries to “reinforce its
power at the expense of SUNY” and so on. The RF says these are misconceptions –
yet they recur across many deals and campuses. This is an area where changes in
process are called for.
There are certainly situations in which this legal separation must be maintained.
But my overall impression is that the RF exaggerates them--they use it as an excuse.
Many kinds of information sought by SUNY -- and denied by the RF -- would not create
the problem that the RF cites. The RF cites legal criteria that are not usually the
determinative ones. So they have created a remedy -- secretiveness -- that is far too
broad for the supposed disease. The result is corrosive distrust. While there certainly
are productive peer relationships at an operational level, too often the RF essentially
“blows off” even legitimate inquiries from senior management of SUNY Central
Administration and campuses. It treats them sort of the way the U.S. State Department
treats local “native” personnel at embassies: to be given information only to the
minimum extent needed. The overall attitudinal relationship of SUNY and the RF is poor,
and needs to be improved by a cultural change at minimum.
As noted, the RF believes it must guard its legal separation from SUNY in order
to avoid public (FOIL) status of its documents, and further governmental intrusion into its
decision making. However, the rationale seems to have taken on a life of its own, and
has been applied more promiscuously to a variety of circumstances than probably is
necessary. As noted above, the RF cites legal factors which are not in fact the key ones
the courts consider. Therefore, the RF has at times just said “No” to information
requests when it could have used recognized legal techniques (e.g., Joint Defense
Agreement, Common Interest Agreement, or using a third-party consultant) in order to
share information. Indeed, in some cases, it has even refused to share information
where a Joint Defense Agreement was in place. The result is that SUNY and its legal
counsel lack routine information needed about the RF.
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11. Governance. There are at least two important dimensions to RF
governance: (a) internal, and (b) in relation to SUNY.
It is shocking that the governance of the RF has been widely perceived to have
become so personalized. When people talk of the RF’s mission or goals, they never ask
or say what the Board believes--it is all “John wants x”, or “John believes y.” It is as if
the Board of a $1 billion nonprofit corporation does not even exist. In 30 years of
advising dozens and dozens of large nonprofit organization boards, I have never seen
such a phenomenon.
Whatever the causes, as a legal and policy matter, this is unwise. Interestingly,
the campuses perceive the leadership functions at the RF to be handled at very different
levels of effectiveness. There is widespread acknowledgement that the CEO is able, but
also concern over his having “his own agenda,” “being dedicated primarily to survival,”
and being “the guy who taught Machiavelli.”
The RF Charter is perfectly clear in saying that the RF’s sole mission is to
support SUNY and its goals. But a surprise to me was that, with a few notable
exceptions, the RF leadership does not even pay lip service to that concept. They seem
to view themselves as a private organization that needs to become more private. They
are at times dismissive of the management talent on the campuses.
Even more problematic is the fact that several of the RF’s own board members
said flatly that the Board process is “a joke,” that they receive little information, are not
asked for views, and that RF management likes “keeping us in the dark.” They said,
“We don’t function as a real Board.” This obviously must be addressed.
Several RF Board members raised the question of whether the Chancellor really
should want to Chair the Board, as opposed to just being a member. Some modification
of the Chancellor’s role in the RF might be considered, for reasons outlined in the Report.
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It is a challenge to develop governance changes that simultaneously (a) insulate
SUNY and the RF from one another appropriately and (b) more effectively support RF
compliance with SUNY’s goals. It seems clear that some believe SUNY should “grab
hold” of the RF more in terms of setting policy directions and demanding reports on
responsiveness. Others believe SUNY should “take a half step back” and increase its
separateness from the RF. To an extent, I think you can take each approach, in different
areas, and that would probably be the wisest course.
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REPORT ON THE RESEARCH FOUNDATION – SUNY RELATIONSHIP
It would be a sterile exercise to try to discern just how much RF input is helpful
versus redundant; people may naturally emphasize their own efforts. A more significant
issue is whether the RF, by virtue of its dealings with sponsors, could perform some
useful role in alerting PIs to changing sponsor priorities, methods of ranking grant
applications or process issues that could increase the chances that grant applications
will be successful. The campuses largely say that their scientists already pay close
attention to NIH, NSF, DOD, DOE and Foundation funding priorities and changes in
process, and they really do not need to look to the RF for help in this area.
A different question is whether SUNY and the RF are doing the best job possible
to link up researchers in various fields who may need special competencies on their
grants that don’t exist on their particular campus. Obviously, it is enormously helpful to
SUNY competitively if, despite the geographic separation of SUNY campuses, they can
act like a single “virtual” University. If a brilliant genomics researcher at Buffalo, Upstate
or Downstate needs a biostatistics expert, or an orthopedic researcher needs a
biomedical engineering expert, and such experts exist at Stony Brook, SUNY needs to
find a way to link them. Currently, this rarely happens, according to campus leaders. At
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the behest of Stony Brook’s leadership, a new on-line tool was being made available to
help faculty locate such expertise. The RF says that in implementing its Strategic Plan,
it is now trying hard to coordinate researchers to work together in pursuit of larger grants.
The RF is preparing an “asset inventory” via its “Find a Scholar” database (using the
“Community of Science” software). They and SUNY hope this will better link research
colleagues at disparate campuses. It will be important to ensure that this initiative
succeeds.
The fact remains that comparing the last few years’ volume of sponsored
research at SUNY campuses shows only a modest rate of growth for most (but not all)
campuses:
RF’s sponsored research revenue grew from $709 million in 2006 to $892 million
in 2010 (and total revenue grew from $742 million in 2006 to $936 million in 2010),
though the 2010 totals are significantly inflated due to one-time ARRA awards.
Perhaps the major conclusion that leaps out from this data is that--putting aside
the remarkable achievement of Albany and CNSE--the overall SUNY sponsored
research enterprise has grown only about 8% in four years, or 2% per year. Moreover,
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much of the SUNY increase, as the RF acknowledges, was due to an influx of ARRA
dollars, about $100 million. Otherwise there has been very little growth. In 2009-2010,
without the new legislation, the increase would have been 1.4%.
During this period, the NIH budget (including supplemental ARRA funds) grew
from $32.4 billion to $36.2 billion, an increase of 12%. During this same period, the top
20 institutions increased their share of total NIH funding from 30% to 35%. (NIH Blue
Ridge Institute).
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As the 2008 “Final Report of Findings and Recommendations” of the New York
State Commission on Higher Education, chaired by former Cornell President Hunter
Rawlings, noted:
Thus, despite their impressive achievements, there is clearly a need for SUNY
and the RF to step back and look at the “big picture” of how research can more
effectively be stimulated and coordinated across campuses.
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In re-considering the SUNY-RF research strategy, it is important to focus on the
distribution of funding sources overall (bearing in mind that their relative importance to
research at different campuses varies significantly). For FY 2009-10, the numbers were:
Federal $Millions
Department of Health and Human 217
Services
National Science Foundation 60
Department of Education 22
Department of Defense 22
Agency for International Development 20
Other Federal 49
Total Direct Federal 390
Federal through other institutions (other 62
Universities, States, etc.)
Federal through New York State 106
New York State Direct 53
Business, industry and other 183
GRAND TOTAL 891
Source: RF data.
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In considering what it would take for SUNY research to grow more robustly,
another dimension is to assess SUNY’s current success in sponsored research in
comparison to the endowment assets available to support University staffing and
infrastructure. On this gradient, SUNY has leveraged its resources very well:
These data suggest that SUNY has done quite well given the relative paucity of
unrestricted (quasi-endowment) resources that it has available. But this does not tell the
whole story, since “endowment” measures only reserve assets. In fact, many SUNY
people commented that New York State has been fairly generous in funding new SUNY
facilities, but not so as to faculty lines and program support. If SUNY is to rise in
eminence in research, the State will need to provide enhanced funding to recruit faculty
and jump-start programs, functions that often are supported by University endowment
earnings. The RF itself has observed that SUNY suffers from the “absence of a well-
defined and executed SUNY faculty recruitment and retention program that ensures the
efficient and effective support of faculty.” (Strategic Plan, at 50 (2009)). Some research
foundations, such as Georgia Tech Research Corporation and the University of Kansas
Center for Technology Commercialization, explicitly include as one of their functions
assisting the University with recruiting research faculty.
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2. Grant Administration.
Perhaps the most important functions that the RF performs are the nuts and bolts
of hiring, procurement, contracting, and payroll administration. The RF defines some of
the value it brings to SUNY as follows:
Overall, the RF employs some 17,000 people in the course of a year, including
some 5,000 students. The headcount varies considerably at any given time as people
rotate in and out of employment on grants. For example, the headcount was 11,736 on
July 3, 2009, but just 9,575 on November 20, 2009 and then 10,185 on November 19,
2010. These individuals are categorized by the RF in three ways:
• “Sponsored”: those who are employed for and under the budgets supported by
specific sponsored research grants (i.e. the bulk of research assistive
personnel);
• “RF Funded”: those who for various reasons are paid through indirect cost
recoveries; and
• “Agency”: those persons the RF employs on behalf of entities that are not
SUNY, but are affiliated with SUNY, such as faculty practice plans or research
accelerator joint ventures.
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The distribution among these categories varies dramatically by campus, as Chart
#5 below comparing the largest campuses shows:
There are some structural reasons for these differences, but there are also
political or operational ones. For example, the large “Agency” number of employees at
Stony Brook is comprised primarily of support employees for CPMP (the medical
faculty’s “Clinical Practice Management Plan”) which is a non-State entity, although
subject to the Article 16 Regents’ rules. At Stony Brook, the RF employs more than
1,500 people (largely billing clerks, nurses and secretaries) who support clinical practice
and have only a tangential connection to research functions. In contrast, we were told
that Downstate became so “frustrated” with the difficulty of dealing with the RF, that the
corresponding faculty clinical practice created a separate corporation and transferred
support employees into it. As the Stony Brook and Downstate examples illustrate, there
is not necessarily a consistent rationale for RF employment across campuses.
The campuses complain about various aspects of the RF’s performance of basic
HR functions. As is widely acknowledged, one of the main problems of New York State
contracting that the RF was created to address is that the time frame needed to bring
people onto the State payroll, and determine “class and comp,” or to have separate
research supply contracts or sponsor agreements approved by OSC and OAG, is so
long that it would effectively kill research programs. The RF is supposed to avoid these
obstacles, and by all accounts it does so very effectively. This is its indispensable
function, without which virtually everyone believes the SUNY research enterprise would
atrophy.
But problems persist in how the RF performs these functions. For example, in
the view of many campus researchers, they themselves have the expertise to decide
whether a nurse practitioner (who will work with cancer patients enrolled in a clinical trial
and also assist in data recordation for the research) needs to be at x or y level of
experience and compensation. They resent it when the RF “second guesses” them and,
in their minds, impedes the research project. But, in response, the RF says in effect,
“Look, we are a unified employer. Consistent with law and best practices in HR, we
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need to achieve some consistency in job classifications and pay grades. We can’t just
let each PI and campus make its own inconsistent decisions.”
From a legal point of view, there is a lot of justification to the RF rejoinder. They
have been legally mandated to perform an HR function, and they should be allowed to
do it lawfully and professionally. What is harder to assess is why there is a perception
across a number of campuses that the RF meddles not just in specific compensation
decisions, but, one might say, in “policy level” issues affecting the workforce, such as the
overall mix of nurses, nurse practitioners, and LPNs. One campus executive said that
70% or 80% of the faculty are happy with the RF’s performance in this regard, but others
said problems were too common. Also, several of the campus HR people said they
were simply not consulted and were treated high-handedly when the RF overruled their
decisions.
Most campus people said the RF does a good job of getting employees on the
payroll quickly, though naturally there was grousing about occasional problems. In some
cases, they said they expected an employee to arrive, only to find that the RF had found
a hiring glitch and the employment would not occur. The RF head of HR seemed
genuinely committed to managing things well with the campuses, but the campus HR
directors in some cases still said the routine process too often is mishandled. At a
minimum, implementing a better mechanism for communication about hiring time frames
and compensation adjustments seems prudent.
There also has been friction over the RF’s calculation of fringe benefits, its
configuration of benefits, and the costs passed on to the campuses. In light of the
turnover of personnel involved in the revolving portfolio of research grants, many
campuses say that there is no need for the high levels of fringe benefits provided by the
RF. The RF fringe benefit cost is currently 39%, which is passed on to the grant. The
largest components are retirement (13.4%), group health (15.5%), and FICA (7.3%).
Some researchers feel this makes them noncompetitive with other leading Universities
when they apply for grants and propose budgets. The RF counters that it needs to
compete with other New York State employers, and that if it did not provide these
benefits, it could not recruit high-quality personnel, which would impede research.
The RF notes that SUNY’s own fringe benefit level is even higher, 44.09%. 2/
The RF states that “the RF regularly compares RF premium contributions and fringe
benefit rates to University benchmarks to assure that the costs in the fringe benefit pool
are reasonable, so as to compete with other Universities for sponsored research
program funding and continue to attract and retain prominent research faculty.” (RF, “A
Background Document Supporting the Strategic Plan 2009-14: Environmental Scan and
2/ The RF points out that “The RF recovers the funds needed to cover the cost of employee
fringe benefits programs by applying fringe benefit rates to accounts that fund employee salary
and wages,” based on rates negotiated with the Department of Health and Human Services
(“HHS”). The current rate is 44.09%, resulting in annual credits or deficiencies, which are then
resolved in next year’s rate. (RF, “Final Financial Plan Fiscal Year 2010-11,” p. 49).
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Assessment of Internal Strength and Weakness” (April 2009)). However, many
campuses question whether this has been accomplished. The 2009 RF Strategic Plan
also notes that in 2007 the RF performed a study of “fringe rate components, institutional
peer system data, and actions taken to control RF fringe rates,” and that a remaining
task was to prepare options and responses. (Strategic Plan, at 13 (2009)). The request
has been embodied in the RF’s 2011 Final Financial Plan.
The campus personnel’s rejoinder is in part that you don’t need faculty-level
benefits for a workforce of lab technicians who come and go based on grants and that
certain University benefits are designed more for long-term faculty and similar
employees. 3/ The campuses object to the total cost being passed on to them.
Along with HR administration, financial management and fund accounting are the
principal functions that the RF performs. Accordingly, they are the ones to which the RF
has devoted most of its resources in recent years. The RF says it has invested heavily
in IT systems, etc. to better track and report on grant finances and expenditures. This is
not an area that we undertook to audit or that we are professionally equipped to assess.
What we can report is that there seemed to be a reasonably high level of satisfaction
among the campuses with the way the RF performs this function. We were not told of
major problems or of any material failure of the RF to be able to report effectively on the
remaining unencumbered amounts under grants, or other information the campuses
might need. The RF believes it has continually strengthened its capacities in these
areas.
3/ Some other research Universities have found a way to balance the need to recruit and
retain high quality personnel with the concept that fringe benefits should be commensurate with
each type of employment. They identify several categories of personnel and vary fringe benefits
accordingly. Many Universities, such as Georgia Tech and the University of Central Florida, have
separate fringe benefit rates for temporary personnel. Other institutions, such as the University of
Kansas, determine the fringe benefit rate based on the activity level of the faculty or staff member
(e.g., if an individual works .90 to 1.0 FTE, then he or she receives a 34% rate; if he or she
works .5 to .89 FTE, a 39% rate; and if he or she works .01 to .49, a 9% rate). (University of
Kansas, Research and Graduate Studies, “Fringe Benefit Calculation” (effective July 2010, and
effective for FY 2011)).
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But one major concern, addressed in Section 4 below on Compliance, is that
neither the RF nor the campuses seemed clear on who was responsible for tracking
effort reporting, which of course affects how grant budgets and expenditures are
computed, and which carries substantial legal compliance risks. We did not learn of any
major problems that had yet occurred, but this is not a sufficient cause for confidence.
SUNY and the RF need to put in place a secure effort reporting mechanism that in fact
ties the total “institutional base salary” from all sources and the RF grant accounting.
There was some lack of clarity about who actually possessed support data and
was able to verify the consistency and reality of faculty time and effort across research
(RF), teaching (SUNY), administration (SUNY or Hospital), faculty clinical practice (non-
State faculty practice plan), etc. Several campus executives complained that the RF
was usually very slow in responding to information requests. The RF believes its recent
system upgrades provide a solid basis for effective reporting, and that, attendant to that,
there is greater clarity of roles between the RF and SUNY. Also, the RF has convened a
new Compliance Committee to work on this across campuses. (See Section 4 of this
Report addressing Compliance.)
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3. Disputes and Litigation.
It was surprising to us that there were such frequently recurring frictions between
the campuses and the RF over employee actions, grievances, disputes, and litigation.
As with some other issues, the reports were quite asymmetrical: the RF said that it
coordinated very well with the campuses and consulted them routinely on disputes,
threatened claims, and litigation, while the campus personnel complained that they often
were “blindsided” by RF decisions. This may be a “filtering” effect, i.e. that if nine things
go right, people nevertheless remember the one that went wrong. Or it may be that
glitches should be rarer than they are and there is simply poor communication. Campus
personnel reported recurring problems of the following kinds:
• The RF will discharge someone without adequate prior consultation with the
affected campus office, and this may create a problem for other employees or a program.
• The RF will decide to litigate cases that the campus thinks are not the strongest,
or will settle cases that the campus thinks could effectively be litigated. In effect, the RF
makes its own decisions instead of deferring to, or consulting, the campus (which must
work with the person).
• The RF may settle cases on which campus counsel have previously worked--
without consulting them, thereby surprising them and creating difficulties.
• The RF will engage private counsel and expect the campus to pay for them, but
without consulting campus counsel on selection of the outside counsel.
We would not attach as much significance to these reports if they emanated from
just one campus, but they were reported by all four health science centers, for example.
In effect, the RF legal staff said: “Look, we try hard. How much consultation is
enough is in the eye of the beholder. We face a large number of issues, and some need
to be decided quickly.” Also, the RF legal staff made a point which to an extent rings
true: “Sometimes people say they were not consulted simply because they disagree
with the final result.”
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4. Compliance Functions.
Neither the RF nor the campuses seemed clear on who was responsible for
managing institutional effort reporting obligations. Effort reports are used to document
and support compensation costs charged to federal awards. Because compensation
costs generally comprise the single largest element of direct charges to federal awards,
weaknesses in an institution’s effort reporting policies, procedures, or practices can
generate substantial legal compliance risk. For example, over the past five years, effort
reporting has been involved -- in some form or fashion -- in almost every sponsored
research-related False Claims Act settlement involving Universities. We did not learn of
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any major problems that had yet occurred, but this is not a sufficient cause for
confidence. SUNY and the RF need to ensure that there is a secure effort reporting
mechanism that is based on the appropriate “institutional base salary,” and that is able to
reasonably allocate that salary across the total professional effort of faculty members
and others working on sponsored projects. Further, if it does not already do so, this
system should link directly to the RF grant accounting system. SUNY and the RF should
also consider reviewing their effort reporting policies and procedures and assessing the
need for training initiatives to ensure that both faculty and administrators understand and
can comply with their effort reporting obligations.
There was some lack of clarity about who actually possessed support data and
was able to verify the consistency and accuracy of faculty time and effort reporting
across functions and payment sources, including research (RF), teaching (SUNY),
administration (SUNY or Hospital), faculty clinical practice (non-state faculty practice
plan), etc. RF officers conceded that this was a weakness, but said they had recently
convened a group to address those issues. They also are seeking a vendor for software
to better manage on-line all faculty research compliance issues. This should be in place
by June 2012.
The materials from a July 2010 SUNY-RF Vice Presidents for Research meeting
clearly flagged areas in which greater effort was to be devoted, such as:
A long list of remedial actions was identified, but they were described in such
vague terms (e.g., “connect campuses to RF and SUNY levels,” “facilitate research
compliance communities and culture” and “leverage expertise”) that it is impossible to
discern what actually was to be undertaken. (RF and SUNY, “Research Compliance:
Vice Presidents for Research Meeting” (July 28, 2010)).
- 26 -
Overall, the SUNY-RF reporting process should be assessed to consider, for
example: (1) is the actual effort reporting system robust enough to ensure compliance in
today’s environment (after all, great policies/procedures only do so much if the system
itself is dysfunctional); (2) is there a sound suite of policy/procedure documents; (3) are
roles and responsibilities carefully thought out, assigned, and explained; (4) has there
been enough training and education such that both faculty and departmental
administrators understand the rules and can follow them; (5) how does the institution
monitor compliance. None of these are easy questions and they are particularly difficult
for SUNY because it covers so many different institutions.
4/ The RF’s most recent Strategic Plan Progress Report stated that the RF is collaborating
with the campuses on a “streamlined, electronic effort reporting process.” (RF, “Strategic Plan
Progress Report: The Year in Review,” p. 3 (2010)). In summer 2010, the RF-SUNY Research
Vice Presidents wrote an outline of an initiative, “Operational Excellence: Effort Reporting,” with
many elements. But no one I interviewed was clear on where this was going.
- 27 -
share an interest in ensuring that each understand exactly what the other is doing and
charging for.
• Effort reporting.
• Cost transfers (a high incidence of cost transfers can be a “red flag” for
auditors).
• Cost sharing (if the University promises to match some portion of federal
funds, it must do so).
- 28 -
5. Technology Transfer and Commercialization.
• The Bayh-Dole Act requires recipients of federal research support to, among
other things, share a portion of the revenue with the inventor and use the
remainder to support the translation of scientific research or education into
publicly available inventions.
• University budgets are under multiple pressures; free cash flow is in short
supply. Technology licensing revenue can be an important source of
unrestricted “marginal” dollars, even if it is small in “total” dollars.
For these and other reasons, SUNY needs to be in the forefront of tech transfer.
SUNY also ought to be a leader in tech transfers for many reasons. For example:
• Overall, SUNY has a total sponsored research portfolio of about $900 million,
ranking No. 4 among all Universities in the nation. (Strategic Report, p. 15
(2009) (citing data from the National Science Board, Science and Engineering
Institutes (2008)).
• SUNY is located in New York State, the financial/investment leader in the U.S.,
and a state that is home to many large industrial and technology corporations.
• New York State’s population of 19 million offers intellectual capital that many
states lack.
- 29 -
However, SUNY also has some disadvantages, such as:
• SUNY lacks the capital investment pool to jump-start programs and hire faculty
in critical areas. (The Legislature has been more generous in supporting
buildings and infrastructure.)
Given these competing positive and negative factors affecting tech transfer, how
does one evaluate the level of success that SUNY and the RF have had, or that they
should be expected to have? First, there is the question of what the goal should be, and
then the question of what metrics best measure achievement of that goal. Clearly, the
RF should be evaluated in part on how well it achieves the goals it sets for itself. Among
its strategic goals is to “create a technology transfer licensing toolbox that will be
accessible to campus Technology Transfer Offices (TTOs).” (Strategic Plan, p. 7
(2009)). Yet, the campuses say it has not effectively done so to date. Another RF goal
is to “develop and implement a gap fund for developing early-stage technology/IP in
order to take timely advantage of market opportunities.” (Strategic Plan, p. 7 (2009)).
The RF has just recently started such a fund with a $500K investment, matched by
$500K from two campuses.
Overall, most participants agree that the SUNY-RF efforts in technology transfer
have been only modestly successful, and disappointing overall.
- 30 -
The median return (IP revenue divided by research expenditures) for the top 20
institutions was about 9%. SUNY’s realization was 1.3%! SUNY is by far the lowest of
any of the top 20 institutions on this gradient.
For a broader comparison, see Chart #6 on the next page. It shows vividly that
SUNY has a relatively poor record of earning licensing revenue, given the huge base of
research it performs.
- 31 -
CHART #6: Top Universities (plus SUNY): Research Expenditures, License Income, and
Return on Research Expenditures for FY 2007
- 32 -
2. Invention Disclosures. In FY 2009, SUNY invention disclosures numbered
320. Compare this to the performance of the Wisconsin Alumni Research Foundation
(“WARF”), which reported 345 disclosures despite receiving fewer federally sponsored
research dollars than the RF. However, SUNY’s invention disclosure rate exceeds that
of most top Universities that report such data. All things being equal in terms of quality
(unknown), this suggests that SUNY does have a promising tech transfer pipeline.
- 33 -
The basic numbers on important gradients of tech transfer activity are presented
in Chart #7:
There has been some increase in invention disclosures and patent applications.
But as to revenue, except for Stony Brook’s Reo Pro ($8.2 million of the total $10.0
million), a stable and large source of royalty revenue, the performance would be far
worse. Overall, year after year, Stony Brook generates 90% or more of total SUNY
royalty income. In effect, aside from one invention at one campus, the entire SUNY
system and its $1 billion/year research enterprise produce no material licensing revenue.
This chart has shocking implications for SUNY: usually one would expect
economies of scale--the greater and more diverse the research portfolio the greater the
visibility and the greater the yield in tech transfer. Being located in New York State, one
of the world’s financial capitals, also should help. Yet, SUNY is 4th nationally in total
research but just 28th in IP revenue. 5/
5/ The RF cites a Milken Institute study that ranked SUNY #21 internationally among
Universities in commercialization, based on a variety of factors. (See Pappas Report, Exhibit E.)
Some individual campuses have significantly increased their royalties--such as Binghamton,
which has multiplied several-fold in a few years, currently to about $600,000.
- 34 -
Many at the RF also note that the yield on technology transfer is almost wholly
dependent on the kinds of faculty that the SUNY campuses recruit, their research
interests, their focus on translational work, etc.--over which the RF has no control.
Some stakeholders also note that technology transfer revenue is not a meaningful
measure of research administration functions because most revenues derive not from an
accumulation of many research successes but from the rare “blockbuster” drug, device,
or invention, and these cannot be predicted or “managed to.” Others counter that even if
one looks at earlier stage pipeline measures, such as invention disclosures or licenses
granted, SUNY does poorly, and these metrics are more closely reflective of overall
effort. One could go on looking for answers, but the unavoidable starting point is that,
for whatever constellation of reasons, SUNY has not performed as well in tech transfer
as the size of its research portfolio would suggest that it should.
Second, WARF cultivated relationships with key alumni (such as John Morgridge,
former Chairman of CISCO Systems) allowing it to capitalize not only on their expertise
but also to raise funds for innovative programs. Morgridge participated in an innovative
“boot camp” for scientists sponsored by the University of Wisconsin-Madison Business
School, 6/ and has also contributed to a research institute, the Morgridge Institute for
Research. Alumni who feel invested in an institution are more likely to freely give their
time, expertise, and financial resources.
Third, WARF has worked to create a culture that encourages faculty to think hard
about technology transfer. The head of the University’s Research Park, Mark Bugher,
stresses that as faculty members become comfortable with the commercialization
process, more come forward with disclosures and start-up ideas.
Fourth, WARF has not isolated itself – it seeks opportunities to emulate good
ideas from other Universities and research foundations across the country. In 2010,
6/ Note that CNSE held an “entrepreneurial boot camp” in February 2011; the press release
covering the event does not describe whether the RF participated in the development of this
program. (CNSE Press Release, “UAlbany NanoCollege hosts 150 leaders and executives in
clean energy for launch of ‘Entrepreneurial Boot Camp’ series” (February 3, 2011)).
- 35 -
WARF’s senior managers visited the University of Utah to learn more about the
successful technology transfer programs it recently implemented. WARF launched a
program in 2008 called “MERLIN,” modeled on an MIT program; MERLIN relies on
volunteers who have launched, grown and successfully managed businesses to advise
entrepreneurs who are building start-up companies. In these and other ways, WARF
has strived to become even more successful.
- 36 -
After an overhaul of its technology transfer efforts in 2005, the University of Utah
challenged MIT for its rank as the top American University generator of start-up
companies in the Association of University Technology Managers annual survey. In
2009, the University of Utah outperformed MIT by launching 19 companies based on
University research, while MIT launched 18. UT’s success stems from robust efforts not
only to develop new programs, but also to change the mindset about the importance of
technology transfer at the University. As a result of UT’s new programs, between 15 and
24 start-ups have been launched at the University each year since 2006; these results
are dramatic given that between 1970 and 2005, it had launched fewer than seven start-
ups each year. In addition, the University built its program while receiving only a fraction
of the research expenditures of comparably successful Universities ($355 million in
sponsored research in 2009).
Given the RF’s central role in tech transfer, it is important that there be a sense
among the campus investigators and technology transfer personnel who work with the
RF that the RF is skilled and knowledgeable and that, whatever the result, they can
obtain useful technical assistance from the RF. Such a widespread perception does not
now exist. Technology transfer personnel at several campuses said that on concrete,
technical issues, the RF legal people were usually skilled and helpful. But in terms of
larger strategy, or on more strategic issues like bundling of technologies, selling vs.
licensing, or deferring commercialization during scale-up, they were “out of their depth.”
Now this may be unfair: there may be a bit of SUNY pridefullness. The RF staff said
they routinely meet the need, and respect their technology transfer colleagues on the
campus who are “closer to the action” and know the PIs. But the RF people did not feel
inferior in expertise, and they may be correct; we are not in a position to judge that.
Other Universities, including Case Western, Georgia Tech, North Carolina State
University, Ohio State, University of California at San Diego, University of Michigan,
University of Texas at Austin and Wake Forest have directly established or are
considering establishing accelerators and venture funds. Universities are choosing to
become affiliates of a special fund devoted solely to financing start-up companies
formed to commercialize technologies licensed from research at the participating
Universities; Osage University Partners, founded in 2009 by venture professionals and a
former president of the Association of University Technology Managers, shares the
profits generated by the fund’s investments with the participating Universities which
include the University of California-Berkeley, University of Florida and the University of
Michigan. In addition, some state legislatures have created state-subsidized venture
funds, such as Georgia’s GRA Venture Fund LLC.
- 37 -
SUNY has itself spawned several accelerator/incubators, including the Advanced
Biotechnology Incubator at SUNY Downstate Medical Center and the Long Island High
Technology Incubator located on the Stony Brook campus. The general impression
seems to be that there has been moderate but not overwhelming success. Of course
the CNSE has been spectacularly successful in attracting companies to locate in New
York.
Based on interviews in late 2008 and early 2009, RTI International identified
SUNY campus concerns about “areas in which SUNY/RF has fallen short in providing
centralized [technology transfer] services,” which indicated the following:
• “Campuses report not being engaged in decision-making, with the result that
[tech transfer] decisions are not always seen as being in their best interests”
• “Efforts to educate and expand awareness of [tech transfer] topics are limited”
With a few exceptions (e.g., the “Find a Scholar” initiative), essentially, two years
later, we heard these same complaints.
The RF’s “Proposed Strategic Framework for SUNY” includes a number of these
ideas, including (1) “select and implement common IT tools for communicating and
sharing key data related to research activity,” (2) “[p]ool/showcase SUNY technology to
industry and investors,” and (3) “create virtual teams of networking and licensing
experts,”--but it may be too early to tell if these really are occurring.
- 38 -
Very recently, SUNY and the RF issued a summary of “SUNY and the
Entrepreneurial Century -- Implementation Initiatives” (dated April 2011) noting steps
such as:
• “The Technology Accelerator Fund (TAF) will bridge the gap between R&D
funding and private investment by providing grants . . .”
• “[A] system-wide suite of courses, grants, and mentorship programs that will
foster more entrepreneurial campus cultures . . .”
• February 2011 launch of the “Find a Scholar” program and database. (RF,
“SUNY and the Entrepreneurial Century -- Implementation Initiatives” (April 8,
2011)).
- 39 -
5.B Regionalization.
Another pending issue is the move to “regionalize” the tech transfer process at
SUNY campuses by creating five “Regional Hubs.” The “Regional Hubs” for tech
transfer will be Binghamton (servicing, for example, Alfred, Cortland, Delhi, ESF,
Morrisville, Oneonta and Oswego), as well as Albany, Buffalo, CNSE, and Stony Brook.
Under the new RF plan for “Regionalization of Tech Transfer,” the RF will retain
only a few key functions for all campuses, such as “pool/showcase SUNY technologies,”
“industry outreach,” “educate faculty through IT staff,” “provide access and expert user
for tools,” and “manage patent billing, contract with attorneys.”
On the other hand, the regional campuses will perform many tech transfer
functions for themselves, and under contract/voucher for the smaller campuses assigned
to them as well. These functions will include “mak[ing] patent recommendations,”
“plan[ing] commercialization,” “licensing negotiation,” “incubation,” and “business
advisory services,” as well as (seemingly redundantly of RF) “systematic outreach to
regional industry.”
This initiative has proponents and opponents. The basic premise seems
unarguable: that it makes no sense for a campus with a very small portfolio of
sponsored research, and a small or nonexistent pipeline of inventions, to try to maintain
expertise and devote personnel and resources to complex issues of research
administration, compliance and tech transfer. Indeed, the functions could more
efficiently be “rented” from a sister SUNY campus that had deep, internal expertise in
that area. However, the larger campuses that would be the “regional” providers are
concerned that their resources will be spread too thin; that the tech transfer interests of
the smaller campuses have little to do with the “regional” campuses sophisticated life
sciences missions; and that they will not be reimbursed effectively for such personnel
and efforts. The RF, however, feels that the regionalization initiative is responsive to its
mandate to serve the entire SUNY research enterprise while efficiently managing costs.
- 40 -
5.C. Faculty Participation in IP Revenue.
Many participants in the tech transfer market say that a University’s success
depends in part on assuring that it provides a competitive level of financial incentives to
faculty, so they do not defect to other institutions or to industry. Universities use a
variety of formulae in allocating IP revenue among inventors, others on the research
team, the academic department, and the administrative unit (school, campus, and
overall University).
SUNY’s policy is to provide the inventor and the inventor’s heirs or legatees a
nonassignable share in any proceeds from the management and licensing of an
invention equal to 40% of the gross royalty paid. Each SUNY campus establishes its
own guidelines for the distribution of the remaining 60% of the royalties within the
institution. Typically, the campus will support research in the department of the inventor
and the rest of the institution. For example, Stony Brook divides the funds among the
VP for Research, the inventor’s laboratory, the President and the “supporting entity,”
varying the percentage received with the amount of royalties generated.
In accordance with the 1977 SUNY-RF Agreement, the RF adopted as its own
the “Patents and Inventions Policy of State University of New York,” as approved by the
SUNY Board of Trustees on September 19, 1979 and amended November 16, 1988.
Presumably, therefore, when the RF allocates IP revenue, it abides by the SUNY policy.
• Georgia Tech Research Corporation (“GTRC”) pays the inventor the first
$2,500 of gross licensing revenue. The inventor then earns 33% of any further
revenue. For revenues up to $500,000, the inventor’s academic department or
unit will receive 17% and GTRC will receive 50%. For revenues between
$501,000 and $1 million, the academic department will receive 27% and
GTRC will receive 40%. For revenues above $1 million, the academic
department will receive 33% and GTRC will receive 34%.
• Penn State Research Foundation (“PSRF”) pays the inventor 40% of the
royalty income after deducting patent expenses. PSRF receives 40%, and the
relevant administrative unit of the college receives 20%.
• The University of Iowa Research Foundation (“UIRF”) pays the inventor the
first $100,000 of net income; thereafter, it pays 25% to the inventor, 15% to the
inventor’s department, 15% to the inventor’s college and 20% to a research
enrichment fund managed by the University of Iowa Vice President for
Research. The UIRF retains 25% for operating expenses. If a single license
generates more than $10 million in annual income, the University will receive
at least 15% of the income.
- 41 -
• The Wisconsin Alumni Research Foundation (WARF) pays inventors 20% of
the gross royalty revenue generated by a licensed invention; after paying the
inventor’s share, WARF deducts its operating expenses from its two sources of
revenue (royalties on licensed inventions and WARF’s endowment). The net
income is used to fund WARF’s annual grant, or gift, to UW-Madison, which
the University can spend as it sees fit (sometimes with a grant to the inventor’s
department).
Unfortunately, despite the fact that SUNY pays inventors twice as much as UW-
Madison, received more federal sponsored research dollars in 2009, and has more than
nine times the number of faculty members (18,663, not including community college
faculty), WARF was granted almost triple the number of U.S. patents (111) granted to
SUNY (44) in a typical year. So the “rate-limiting step” in remaining competitive for
faculty in terms of their IP commercialization opportunities may not be the rate of
payment, but the relative success of technology transfer transactions--upon which any
revenue depends.
- 42 -
6. Legal Support.
The RF has allocated about 10 FTE, or 7% of its staff, to legal functions. The RF
also spends significant sums annually on outside counsel, both for litigation matters and
for transactions, particularly involving the creation of affiliates. Some of this legal effort
is devoted to advising the RF itself on internal functions, managing litigation, and so forth.
But significant effort is also devoted to legal support for the research and technology
transfer functions at the campuses.
There is no way to avoid reporting that among all RF functions, the legal function
overall has been viewed especially negatively by the consumers of the RF’s services at
the campuses and SUNY Central Administration. This is not uniform across the board.
For example, several campuses commented favorably on the collegiality and skill of RF
counsel principally devoted to intellectual property issues. Those working on HR and
staffing services were viewed as helpful and skilled at times. But overall, the comments
were that the RF counsel office is “secretive,” “difficult” “not collegial,” “not
knowledgeable,” and “not as good as they think.”
• The RF legal staff believes they have more expertise than they do on some
issues, and does not appreciate that the campus personnel may deal with an
issue far more frequently than they, and may have added expertise.
• The RF legal staff seem more interested in protecting the RF or enhancing its
authority than in solving problems for SUNY.
• The RF counsel are “political” and approach many issues from the perspective
of what top RF management wants rather than what is the best result for
SUNY.
When I interviewed virtually all the RF legal staff, the “rank and file” seemed
earnest, intelligent, conscientious, and eager to perform well. They said with conviction
that “it takes two to tango,” and that often the campuses complain of lack of collegiality
simply because the RF has a legal obligation to be the “cop on the beat,” to insist on
regulatory compliance or proper HR processes, and that campus personnel just want the
convenient outcome regardless of process. This Report is not the place to try to assign
relative “right,” but it is important to stress that while a large number of campus
personnel think the RF counsel are not responsive, the RF counsel feel just as strongly
to the contrary.
- 43 -
We have tried hard to stay away from individual or personality-related issues in
this Report. However, it is impossible to report accurately on this issue without noting
certain points. The campuses uniformly expressed a different level of confidence in and
appreciation of the assistance received from the RF on some issues more than others.
But the RF’s then-General Counsel was uniformly viewed as very difficult, abrasive and
at times hostile. That hostility came through loud and clear in our interviews. The RF
General Counsel repeatedly described SUNY personnel--her client’s sole customer--as
“stupid,” “out of it,” don’t know what they’re talking about,” “academics with no idea about
tech transfer,” needing to “get with the program,” “we need to whip them into shape,” etc.
We have rarely heard such intemperate remarks from a lawyer for a service organization.
Even more surprisingly, these views were expressed to me not only in private, but also
in a large meeting with all RF legal staff present. This attitude clearly was part of the RF
“culture.” As one senior RF manager conceded, “[The General Counsel] just exploited
an underlying cultural issue between RF and SUNY.” “The RF General Counsel recently
departed. But a change in personnel without a change in culture will not suffice.
The RF General Counsel had been combatively rigid about a number of legal
issues that are somewhat nuanced and that have caused recurring problems between
SUNY and the RF. (See Section 10, addressing the “Legal Separation of the RF and
SUNY”). Generally, in affiliated organizations, like SUNY and the RF, counsel recognize
that issues often are close calls, and that there are several ways to approach the issue,
or adjust functions in order to reach a mutually acceptable result. But repeatedly on
significant issues, such as access to records, sharing information about strategy,
terminations, etc. The RF General Counsel conveyed to both SUNY campus counsel
and SUNY outside counsel that there was only one way -- “my way.” This is unusual
among related nonprofit organizations. Some SUNY personnel expressed the view that
the RF’s CEO encouraged and utilized the combative stance of RF counsel for tactical
advantage in fending off SUNY and enhancing the RF’s authority and role. The recent
change in personnel provides the opportunity to confirm or dispel this view.
Without doubt, there is a need for better and more systematic collegial
communication among the RF and campus lawyers. In the recommendation section, we
make some suggestions to this end.
Note: Also see the discussion of the RF’s use of outside counsel in Section 7 on
Affiliated Entities and Ventures.
- 44 -
7. Affiliated Entities and Ventures.
2. BioBAT, Inc. – Formed in 2006 by the New York City Economic Development
Corporation and the RF (acting on behalf of SUNY Downstate Medical Center), BioBAT
will develop the Brooklyn Army Terminal into a site for biotechnology expansion,
manufacturing and research. The Mayor of New York City and others expressed the
hope that BioBAT will help create an additional 500,000 square feet of commercial lab
space in Brooklyn and generate economic development. The first 56,000 square feet
are scheduled to be completed in 2011.
- 45 -
5. Buffalo 2020 Development Corporation (“Buffalo 2020”) – Formed in 2004 by
the RF and University of Buffalo Foundation, the Buffalo 2020 Development Corporation
was charged with developing research facilities on UB property in Buffalo. Buffalo 2020
partnered with Kaleida Health to construct a facility (scheduled to be completed in late
2011) in downtown Buffalo with clinical facilities, research and development facilities,
and a biosciences incubator.
- 46 -
11. Fort Schuyler Management Corporation (“FSMC”) – Formed in 2009 as a
private nonprofit corporation, it is a partnership between the RF and the SUNY Institute
of Technology (“SUNYIT”), FSMC will facilitate the construction of a nanotechnology and
semiconductor development and manufacturing facility and manage the construction of a
Center for Advanced Technology (“CAT”) and a Computer Chip Commercialization
Center adjacent to the SUNYIT campus. It will also help advance the mission of CNSE
at University of Albany.
13. Long Island High Technology Incubator, Inc. (“LIHTI”) – Formed in 1989 by
the RF (on behalf of Stony Brook University) and the Stony Brook Foundation, Inc.,
LIHTI’s mission is to develop new high technology companies in specified technology
areas, including biotechnology, environmental science, electronics, information
technologies and new materials. Forty-four companies have successfully graduated
from the LIHTI program.
15. Source Sentinel, LLC – Formed in 2002 by the RF (on behalf of the SUNY
College of Environmental Science and Forestry) in partnership with O’Brien & Gere
Limited and Sensis Corporation, this limited liability company develops proprietary, early
warning water/wastewater/storm water sensing and alert technology.
17. SUNY Fredonia Technology Incubator, Inc. – Formed in 2010 by the RF and
the Fredonia College Foundation, the nonprofit’s mission is to develop and manage a
technology incubator. The 21,000 square foot “green” incubator facility, located in
Dunkirk, New York, opened in late 2009.
- 47 -
Note: University at Albany Bioscience Development Operation was a nonprofit
corporation formed by the RF (on behalf of University of Albany Foundation) to promote
research facilities, but the RF withdrew in 2010.
_________________
2. Given New York State’s legal rules (limits on State assumption of debt, on
joint ventures with industry, on Office of State Comptroller (“OSC”) and Office of Attorney
General (“OAG”) State appropriations, on indemnification, and especially the time and
complexity involved in review processes), it is very difficult for SUNY to contract with
private parties for joint ventures without (a) massive delay, (b) onerous required State
contract terms that most private parties find unacceptable, and (c) atypical provisions
related to costs or liabilities (i.e. shifting all risk to the other party). The RF is able to
handle those matters in a more timely, business-like way that private sector parties can
accept.
3. The proliferation of affiliates has been criticized by the OAG and OSC as
“end-runs” around State counsel that have created some skepticism or even hostility
toward SUNY. Those offices dislike what they perceive as SUNY using the RF to
achieve an “evasion” of their authority to monitor and approve SUNY activities.
- 48 -
4. Because most entrepreneurial activities reside in RF-created affiliates, SUNY
has not developed internal skills in some of those areas.
It is impossible not to mention another problem relating to affiliates that was cited
by many executives at a number of campuses: the conduct of the RF’s retained outside
counsel on most of these affiliate ventures. SUNY executives complained that:
One campus executive said: “I can’t believe it. I was browbeaten and intimidated
by a guy who says he’s functioning as my lawyer!” Another executive said, “[the RF
counsel] stabbed us in the back.” Another said, “I was told he was representing us--but
now, actually, I don’t know who he represents.” Another said, “he twists my arm even
though he is supposed to be advising SUNY--and one time he threatened that if I didn’t
cave in, he would [harm] us and make sure we never got another dollar of support from
the RF.” I will assume that counsel or other participants in these conversations might
say they were misunderstood and this does not fairly reflect their approach.
- 49 -
Several SUNY leaders also commented that they feel the RF and especially its
outside counsel have a self-interested “promotional” interest in proliferating affiliates,
since that creates more work and more need for the RF. Their comments can be
summarized as follows: “We have too many affiliates. Nobody knows why we need
them all. The RF likes to create and dominate them. We need to be more selective.”
The RF acknowledges that, in retrospect, not all of the affiliates have turned out to
perform major, necessary functions. But they counter that all were created at the
request of SUNY-- they were not original ideas of the RF, and that, when created, the
RF was told SUNY could not perform the needed functions directly. And SUNY
executives did not express a desire to fold down the affiliates most relevant to their
respective campuses. Usually they questioned “the other guy’s” affiliate.
All in all, this area of affiliate activity is one that merits attention. It should be
possible to clarify roles and reform this process so that the RF and SUNY can work
better together.
- 50 -
8. Costs and Charges.
There is a widespread sense on the larger campuses that the assessment is too
high. While understandable, in that virtually everyone in academic medical centers
complain about all costs that burden their missions (faculty also vociferously complain
about their own campus rent levels, overhead allocations, etc.), this complaint may be
unfair. First, even if the RF assessment rate were reduced, in the case say of Upstate,
from 4% to 3%, given Upstate’s research portfolio of $38 million, that would “save”
Upstate only $380,000--some of which might be eaten up by the functions Upstate would
then need to perform, due to reduced RF services. This amount would not alter
Upstate’s overall finances. RF assessments were $27.3 million in 2006 and are planned
to be $29.8 million in 2011. (RF, “Final Financial Plan: Fiscal Year 2010-11,” Exhibit D).
During this same period, campus F&A recoveries grew from $114 million to $137 million.
Another way to look at this is to consider how the RF’s own finances have
changed. Over the past few years, it has maintained a relative balance of revenues and
expenses on current operations. But it has experienced volatile accrued charges due to
required asset revaluations and charges for accrued pension and post-retirement health
benefits for employees required by changes in the accounting rules--resulting in
substantial net deficits. The liability was $184 million in 2010 (though this was
elsewhere said to be $252 million as of June 30, 2010). The RF then began to set aside
funds to satisfy these liabilities. The RF now has a plan to fund the accrued liability over
10 years, but that requires positive operating margins. Moreover, the plan only
increases the funding percentage of the total liability from 44% to 64% over five years--
while the total liability grows from $184 million to $268 million and the unfunded part
drops only from $104 million to $98 million.
There are many complexities to the analysis of RF finances that are beyond my
expertise and the scope of this Report. But I think it is obvious that while the RF’s
assessment might be “tweaked” and its application to various specific circumstances
might be adjusted, the assessment itself is not the heart of the issue. The RF should be
adequately funded for the tasks it is asked to perform--and then it should be expected to
perform those tasks well.
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Note: The Pappas Consulting Group’s report recommended consideration of
several new assessment models, but they have not been adopted. An RF white paper
concluded that the current “flat” assessment model based on gross research revenue
(rather than actual indirect cost recovery) had resulted in the fact that “large research
institutions subsidize those campuses that conduct a greater percentage of [poorly
reimbursed] NYS programs in comparison to research grants that provide better F&A
recovery.” (RF, “Direct Cost of Campus Subsidies” (2005)). Also, issues of inter-campus
equity could be addressed.
• Allocating the central office budget “off the top” and allocate the
balance of the unrestricted revenue back to the campuses based
on the percentage for which it was earned.
Recently the RF changed the contribution requirements for retiree health plans. In its
March 2011 Benefits Bulletin, the RF stated bluntly:
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The primary reasons for the increase are medical cost inflation,
decreasing returns on investment, and the growing number of those
eligible for the benefit . . .
The gap between liability and assets is growing alarmingly. The change
in retiree contribution rates will help us to close the gap and maintain our
benefits program for the long term.” (RF, “Benefits Bulletin” (March
2011)).
The RF’s “Final Financial Plan” for 2010-11 shows that it faces a number of
serious financial challenges. For example:
• The RF notes that “the result of this projected slow growth relative to expected
increases in operating costs could affect the sustainability of the SUNY
research enterprise.”
• The RF’s F&A recovery rate was 17.4% in 2009, 19.3% in 2010 and is
projected to be 17.8% in 2011. (RF, Data Dashboard).
• The RF says it plans to try to replenish reserves, which it needs for financial
stability, while seeking “efficiencies” to improve services.
Most importantly, the RF itself projects flat revenues for the next five years. If
that is so, then the expectations of SUNY for RF services and initiatives must be
appropriately tempered.
Chart #11 on page 84 displays the current direct and indirect costs, negotiated
F&A rate, and recovery for each campus.
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The SUNY campuses’ ability to pay the RF assessment depends on their indirect
cost recoveries. Those in turn depend on rates negotiated with each payer. Thus, it is
relevant to bear in mind that the level of indirect cost recovery varies significantly by
sponsor source. See Chart #8 below:
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Overall the RF computes that its recovery rate is as follows, currently and as
projected in five years:
The F&A overall recovery rate was 19.3% overall in FY 2010--a composite of 27.4% for
federal research, 3.7% for New York State and 12.3% for privately sponsored research.
(RF, Data Dashboard; RF, “Final Financial Plan: Fiscal Year 2010-11,” Exhibit G).
Overall, the RF had net assets as of June 30, 2010 of negative $104 million, a
$38 million drop from the prior year. The 1977 Agreement states that “since the
Foundation’s sole purpose is to serve the University, any income of the Foundation in
excess of the amount necessary to meet its own operating expenses” and ‘‘prudent
reserve funds should be expended for the benefit of the University and in furtherance of
its purposes, in such manner as the Foundation shall determine, with the approval of the
University [and the Director of the Division of Budget].” This suggests that the RF should
at least be consulting with SUNY at a high level, concerning its plans for revenues,
charges, and expenditures.
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Indeed, the headcount is down from as high as 184 in 2006, so this suggests the RF
personnel are working very hard and the administrative staffing is pretty lean.
The RF has maintained only modest reserves, growing from $1.7 million in 2006
to $4.9 million in 2010. It seeks to increase that to $9 million in 2015. It also has an
investment reserve, which the RF states is “to help ensure campuses receive the
distribution of projected investment income in a particular year.” The RF says that the
reserve account now has a $34 million negative balance since “[t]he losses that resulted
from market conditions were not allocated to campuses.” (RF, “Final Financial Plan:
Fiscal Year 2010-11,” p. 42). The RF projects an elimination of this negative balance by
2016. (RF, “Final Financial Plan: Fiscal Year 2010-11,” Exhibit B).
Net available working capital was $42 million in 2010, and the RF expects to
build it to $87 million in 2014-15. This represents a significant change in an otherwise
largely static projection. However, as noted, it believes such reserves will be fully
required to satisfy accrued pension and related liabilities. Moreover, the RF is
concerned -- with some justification -- about its ability to continue taking on more and
more functions on behalf of SUNY, and its capacity to continue upgrading systems to
meet compliance needs, while living off of a constrained budget.
The RF has rightly pointed out that it faces significant potential financial bumps
on the road. As its 2009 Strategic Plan noted: “Currently the major source of RF
revenue is the recovery of F&A on sponsored projects. As the NYS budget continues to
decline, the demands on the F&A recovery increase. The RF financial plan needs to
address this pressure and develop models to enhance the entire enterprise… the intent
is not to increase the assessment to campuses to support major initiatives, but to
explore…various sources of funding.” (Strategic Plan, at 9 (2009)). No details were
given.
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9. Communication, Collaboration and Transparency.
Naturally, one must ask whether these communication problems are simply
routine “glitches” in a complex system, or they represent something more. I think it is
clear that they represent something more, and that something is a substantial cultural
disconnection between the organizations. They fail to communicate well because they
have different conceptions of how they ought to communicate.
SUNY believes that the RF is a service and supporting organization; that the RF
ought to consult SUNY in advance on important actions; that the RF should take its
views into account; and that the RF should keep SUNY apprised of all major
developments. The RF, in contrast, jealously guards its identity as a “private, non-profit
corporation” which is independently governed and is not part of or managed by SUNY.
The RF sincerely believes this. But in our view, they also take this posture as a tactic to
avoid having SUNY second-guess their judgments or meddle in their decision-making.
It frankly is unreasonable for the RF to resist inquiries from the Chair of its own
Board, who has fiduciary duties to superintend its operations, on the ground that she
also holds the position of SUNY Chancellor. Absent a specific conflict of interest, this
wall of silence seems unwarranted. Similarly, several campus Presidents who sat on the
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RF Board also say it provides them with little information and then at times only
grudgingly. (See Section 10 below).
Also, many SUNY executives say that the RF culture is a culture of secrecy,
multiple bureaucratic games and non-transparency. The RF executives believe this is
unfair and that they have withheld information only for legitimate legal reasons.
This array of communication problems has persisted for a long time. In 2007, the
Pappas Consulting Group concluded an extensive review of the RF. Many of the
findings pointed to the need for RF to be more service-oriented and less secretive and
distant in its relationship with SUNY. For example, Pappas Consulting Group said:
• “RF needs to view its relationship with campuses as that of a partner rather
than a regulatory/compliance authority; too intrusive at times.”
• “RF does not fully understand that its role is to work for and on behalf of the
SUNY campuses.”
• “RF has a limited understanding of the research mission, function and purpose
of each [campus], especially…the doctoral granting Universities.” (Pappas
Consulting Group, “Operational Review,” p. 5 (revised draft November 2007)).
In fairness, Pappas Consulting Group also noted that “the perceptions articulated
by SUNY campus customers of the Foundation stand in stark contrast with those held by
central staff members” and the RF. (Pappas Consulting Group, “Operational Review,” p.
7 (revised draft November 2007)).
Yet the fundamental fact is that four years later, the frictions remain. As one
campus executive said,
“When the President has been unhappy with certain licensing agreements,
I have called the RF and told them we were unhappy with the services
they were providing under the 1977 agreement. They do not respond as
an entity providing services for our benefit, but have acted as if they are
independent of us. Our relationship with them should not give them the
ability to act against SUNY’s interests or those of faculty members whose
intellectual product they are negotiating away without consultation.”
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It is disconcerting to many at SUNY that the RF seems resolutely refractory to
improving its responsiveness to SUNY. In August 2009, the RF wrote in its Strategic
Plan that among its goals was to “establish a methodology to continuously assess and
improve satisfaction of the SUNY community.” (Strategic Plan, p. 7 (2009)). It added
that:
“We have spent the last two years asking and evaluating fundamental
questions about the way in which the RF could emerge as a more
strategic and effective partner with SUNY, its sponsors, and the RF’s
affiliated corporations in order to benefit New York State. To that end,
considerable self-assessment has taken place at the RF. RF Staff have
reached out to the SUNY campuses and other entities to ascertain their
perceptions of the strengths, weaknesses, opportunities and threats that
will face the RF [and]…these efforts influenced the shape of the [strategic
plan]…that was presented to the Board.” (Strategic Plan, p. i (2009)).
Yet, 18 months later, the SUNY campuses generally do not report seeing any
higher level of responsiveness from the RF.
The RF Charter makes clear that its only purposes are to advance the missions
of SUNY. Its purposes are:
(c) To finance the conduct of studies and research in any and all
fields of the arts and sciences, of benefit to and in keeping with the
educational purposes and objects of State University of New York ...” (RF
Charter (1951, as amended 2009), p. 1 (emphasis added)).
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Thus, the RF’s tax status, in effect, requires that it share with SUNY information
that SUNY needs--unless there is specific legal justification for not doing so.
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10. Legal Separation Between the RF and SUNY.
There are dangers in too much divergence of perceived mission. There have
been a surprising number of legal disputes between foundations and the entities that
they were supposed to be servicing. This suggests, at a minimum, that it would be wise
to clarify legal standards and relationships. As one scholar summarized, “Ambiguity in
the authority and obligations between a University and a foundation can lead to internal
legal disputes that are damaging to both.” (Cady, “Public University and Affiliated
Foundation Relationships – Balancing Control and Autonomy” (unpublished paper,
2005)). The scholar observed that usually, “Public University foundations are private
entities with public responsibilities.” (Cady, “Balancing Autonomy and Control,” (2005)).
But the RF Charter makes clear that its only purposes are to advance the
missions of SUNY. Its purposes are:
(c) To finance the conduct of studies and research in any and all
fields of the arts and sciences, of benefit to and in keeping with the
educational purposes and objects of State University of New York ...” (RF
Charter (1951, as amended 2009), p. 1 (emphasis added)).
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So, there is no question that the RF should be aligned with and subservient to
SUNY’s mission. Some toleration of divergence has occurred, but SUNY should be
aware of the risks.
There has been recurrent litigation with the RF about whether its relationship with
SUNY makes it a state agency or instrumentality. In Zhao v. State University of New
York, 472 F. Supp. 2d 289 (E.D.N.Y. 2007), the court accepted as established that “The
[RF] is a private, non-profit corporation established by the New York State Board of
Regents pursuant to Section 216 of the Education Law of the State of New York and is a
corporate entity separate from SUNY.” Nevertheless, in this employment discrimination
case, the court noted that “the roles of the Research Foundation and SUNY, as it related
to employees, are substantially intertwined. In particular, the [RF]…acts as the employer,
but delegates the hiring and other employment decisions to the SUNY representative.”
Hence, “although the [RF]… is a separate entity from SUNY, the purpose for its
existence is to administer grants awarded to SUNY and to provide other services in
support of SUNY’s mission. Thus, SUNY’s grant money flows through the [RF] and the
[RF] employees operate under the direction of SUNY employees.” Accordingly, the
court refused to dismiss a claim against the RF, since it was deemed for those purposes
to have an “identity of interest” with SUNY.
In a similar case, Towers v. State University of New York at Stony Brook, 2007
WL 1470152 (E.D.N.Y. May 21, 2007) the court relied on Zhao in ruling that the plaintiff
had alleged facts indicating that SUNY Stony Brook and the RF might possess an
identity of interest. For an analogous finding as to the City University of New York and
its research foundation, see Fox v. City University of New York, 1996 WL 384915
(S.D.N.Y. July 10, 1996).
Another New York court concluded that the SUNY-RF relationship is so close
and intertwined that the two should be deemed “joint employers” under the
antidiscrimination provisions of Title VII. Pemrick v. Stracher, 67 F. Supp. 2d 149
(E.D.N.Y. 1999). In summing up its conclusion that the RF and SUNY are “joint,
integrated employers,” the court said “The …State University of New York and the
Research Foundation of SUNY are inseparable in terms of their mission and their
money.” This would not seem to leave much ambiguity, but of course the facts in each
case may affect future rulings.
There is also the issue of what suits against a state agency are permissible. As
the court in Zhou stated, “there is no question that SUNY is a State agency entitled to
Eleventh Amendment immunity.” (See also Dube v. State University of New York, 900
F.2d 587, 594 (2d Cir. 1990) (“For Eleventh Amendment purposes, SUNY is an integral
part of the Government of the State [of New York] and when it is sued, the State is the
real party.”)). The same would presumably not be true of the RF, however. The Zhou
court indirectly acknowledged this, although it found that it did not matter because “any
actions the administrator [took] as agent of the Research Foundation also were
performed as part of her official capacity as a SUNY employee” and also would be
protected by immunity.
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These rulings suggest that it would be important to future liability actions to
clearly differentiate: (a) actions taken by people in their capacity as SUNY employees, (b)
actions taken by people in their capacity as RF employees, and (c) actions taken by
people in both capacities simultaneously. This often is necessary in the dual-role
context, and many Universities face this. The best practices in the HR field certainly are
to clearly differentiate roles (and to take care to do so in correspondence, emails,
stationery, meetings, etc.). It is not clear that SUNY and the RF effectively put this into
practice across the board.
Such challenges are cited by the RF as a key reason for not sharing information
with SUNY on various matters. But as noted above, the reasons cited as decisive by the
courts are not ones that are likely to be changed by subtleties of whether the RF
answered a SUNY inquiry or copied SUNY campus personnel on an email. The basic
structural relationship is what causes the courts to conclude that the RF and SUNY are
“inseparable in terms of their mission and their money,” and that “the purpose for [the
RF’s] existence is to administer grants awarded to SUNY.” SUNY and the RF can
litigate particular factual matters in cases, but they must live with the reality of these
basic features of the relationship. It is fanciful to believe that these big factors can be
made to evaporate by denying an occasional request for one piece of problematic
information. So I would suggest that SUNY and the RF take appropriate measures to
clarify their respective roles on the “big” operational issues, but that they recognize that
even separate entities are permitted to communicate when they have a shared need in
their respective operations.
One conclusion that can be drawn from these legal rulings is that while it may be
desirable to avoid public disclosure obligations with regard to RF documents and
functions, a legal disclosure obligation is likely to depend in the long run on the basic
mission, relationship, and funding of the RF--which cannot readily be changed. It is not
likely to be significantly affected by minor “tweaking” of such matters as the manner in
which documents are produced, or whether SUNY is consulted on certain issues.
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RF counsel cite as another concern that sharing information with SUNY may
waive the attorney-client privilege. However, many of the disputes and litigation
situations in which this issue arises are ones in which an employee might assert a claim
against both the RF and SUNY, or a third party is considering or asserting a claim and in
discovery might add one or the other entity as another defendant. In situations such as
these, it is common for parties who are entirely separate but might both need to defend
claims, to share information under a “Joint Defense” or “Common Interest” agreement.
The very purpose of such a legal mechanism is to enable parties to share information
useful to defending potential claims without compromising their separate attorney-client
privilege or relinquishing separate rights or defenses each may have. The RF seems
reluctant to use such a mechanism with SUNY. Indeed, it has refused to share data with
SUNY and its outside counsel in some instances even when a Joint Defense Agreement
was in place for this very purpose.
In some circumstances, for the RF to disclose reports to SUNY would make such
documents obtainable under New York State’s Freedom of Information Law (“FOIL”).
(See NY Public Officers Law § 84 et seq.). In some contests such an objection to
disclosure is entirely defensible. However, under the FOIL, state agencies may deny
access to records that, among other things, (i) if disclosed, would impair present or
imminent contract awards or collective bargaining negotiations; (ii) “are trade secrets or
are submitted to an agency by a commercial enterprise or derived from information
obtained from a commercial enterprise and which if disclosed would cause substantial
injury to the competitive position of the subject enterprise”; (iii) are intra-agency materials
which are not statistical or factual tabulations or data, instructions to staff that affect the
public, final agency policy or determinations, external audits; (iv) “if disclosed, would
jeopardize the capacity of an agency or an entity that has shared information with an
agency to guarantee the security of its information technology assets, such assets
encompassing both electronic information systems and infrastructures.” (NY Public
Officers Law § 87(2)).
One thing that is critical, however, is ensuring that the mission and goals of the
research foundation and the University remain strongly aligned. There are some painful
examples of Universities and supporting foundations that have had debilitating public
disputes. The director of Foundation Programs and Research for the Association of
Governing Boards of Universities and Colleges has noted that it is “extremely rare” for
an educational institution to dissolve a relationship with a related foundation. (Tom
Corwin, “School may cut all ties to board,” THE AUGUSTA CHRONICLE, June 24, 2008).
Disputes usually result from the failure of the University and the foundation to
communicate about expectations.
Note: We outline below some disputes in other states just to underscore the
range of issues and the risks of unanticipated fights. Some of these foundations were
established for other purposes (such as fundraising) and all are under different state
statutes.
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There has been recurring litigation in other states over the public status of
research foundations affiliated with public Universities. Each is usually resolved by
reference to the unique wording of state law, but the trend has been toward deeming the
foundations to be public for purposes of discovery of information, at least. 7/ At least
one federal court, however, has concluded that even a research foundation operated “at
all times, ‘solely in connection with’” a University is not necessarily a state instrumentality.
Theron v. Sollinger and Wisconsin Alumni Foundation, 2000 WL 34235997 (W.D. Wis.
July 20, 2000). In Theron, the court dismissed a due process claim against the
Wisconsin Alumni Foundation because “[m]erely listing the areas in which defendant
foundation takes actions on behalf of the University is not enough to show that it is
acting as a state instrumentality when it undertakes patent application prosecution, or
that it is performing traditionally exclusive sovereign functions or has been compelled by
the University to make the decisions it does on patent application prosecution.”
University of South Alabama: The University of South Alabama spent more than
a decade resolving disputes with its supporting foundation, the University of South
Alabama Foundation; the disputes often played out in both the courtroom and the local
Alabama media. Two of the disputes spawned litigation. At the heart of the conflict was
a lack of communication between the University and the Foundation, and a deep tension
resulting from University fears that the former President and founder of the University
(who had been forced to step down) was attempting to control the University through his
leadership of the Foundation. The litigation became so rancorous that the judge
reprimanded the University trustees for referring to the Foundation as the “Axis” powers
in a court filing. (William Rabb, “Foundation wins a round in USA fight,” MOBILE
REGISTER, June 20, 2001). Only after a joint meeting with the Governor of Alabama,
court-ordered mediation and $1.9 million in legal fees did the two sides finally reach a
settlement in one of the cases. (“Governor meets with feuding USA, foundation
officials,” MOBILE REGISTER, July 12, 2001; “USA pays legal bill, concludes settlement,”
MOBILE REGISTER, August 28, 2001).
Clark College: Clark College challenged the Clark College Foundation’s refusal
to let it review and copy records, which the Foundation said would subject it to State
audit. The case was ultimately settled on a basis allowing access to records sufficient at
7/ See e.g., Jackson v. Eastern Michigan University Foundation, 544 N.W.2d 737 (Mich. Ct.
App. 1996) (finding the foundation to be a “public body” for purposes of the state’s freedom of
information act (“FOIA”) “because it is primarily funded by Eastern Michigan University,” despite
language in organizational documents disavowing that either was the agent for the other) and
The State ex rel. Toledo Blade Company v. University of Toledo Foundation, 602 N.E.2d 1159
(Ohio 1992) (holding that a legally “private” foundation is nevertheless a “public office” (i.e., state
agency or instrumentality) for purposes of Ohio’s FOIA law (despite steps taken to ensure
separation between the two organizations, such as arms-length reimbursement of expenses)
because the Foundation’s sole purpose is to “receive, hold, invest and administer funds for the
benefit of the University” and there is a “public interest” in knowing the functions that such an
important entity engages in).
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least to verify that the Foundation was serving Clark County’s mission. (See Cady,
“Balancing Autonomy and Control,” (2005)).
Medical College of Georgia: In June 2008, the Augusta Chronicle reported that
the Medical College of Georgia (“MCG”), after years of conflict with the Medical College
of Georgia Foundation, issued an ultimatum: the Foundation’s board should resign or a
new foundation would be created. (Andrea Jones, “Medical college warns board,”
ATLANTA JOURNAL AND CONSTITUTION, June 14, 2008). MCG leadership determined that
the Foundation’s priorities were not always aligned with MCG’s priorities. (“Medical
College of Georgia to ax Medical College of Georgia Foundation,” ATLANTA BUSINESS
CHRONICLE, June 13, 2008; Tom Corwin, “Split with foundation in works,” THE AUGUSTA
CHRONICLE, June 13, 2008). When the Foundation’s board did not resign, MCG not only
organized a new entity to replace the Foundation, it also initiated a lawsuit alleging,
among other things, that the Foundation had violated its fiduciary duties to MCG, refused
to align its fundraising priorities with MCG and refused to timely provide financial
information necessary for MCG’s budgeting and planning purposes. (“Medical College of
Georgia looks inward for new foundation,” SAVANNAH MORNING NEWS, 2008 WLNR
13476539, July 18, 2008; “Board of Regents sues Medical College of Georgia
Foundation,” ATLANTA BUSINESS CHRONICLE, October 20, 2009). Eventually, MCG
dismissed the lawsuit (though local press coverage is unclear about what sparked the
reconciliation). (Dave Williams, “Medical College, foundation bury the hatchet,” ATLANTA
BUSINESS CHRONICLE, November 1, 2010).
Princeton University: In 1961, the Robertson family made a $35 million gift (which
grew considerably in value over time) for the benefit of Princeton. The gift was
administered by the Robertson Foundation, whose Board of seven was appointed four
by Princeton and three by the Robertson family. After some disputes over use of funds,
the family sued, arguing that the Princeton members had a conflict of interest. The
Foundation alleged that $100 million of the Foundation’s funds had been
misappropriated to Princeton’s missions rather than the Foundation’s. The court
rejected this view on the grounds that the purpose of such “supporting organizations” is
“to be responsible to the public charities they support.” Robertson v. Princeton
University, No. C-99-02 (N.J. Super. Ct. Ch. Div., Oct. 25, 2007).
Cases such as these always involve unique facts. But they underscore that
friction between Universities and foundations can cause both institutions to spiral
downward, and that resolving differences of mission at the front end is essential.
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11. Mission and Governance.
There is no “right” or “wrong” way for a public University to manage its research.
Some of the most successful, such as University of California and University of Texas
(#1 and #2, respectively, among public Universities in total sponsored research awards
in FY 2007) (Strategic Report, at 15 (2009))), manage both their portfolios of sponsored
research and their technology transfer functions internally without a separate research
foundation. Apparently, under their state’s legal/regulatory regime, this is feasible.
Other public Universities internally retain only the management of the research
grants, but externalize to a separate research foundation the tech
transfer/commercialization activities. A typical example is the Iowa State University
Research Foundation, whose mandate is to (1) “own, manage, and protect intellectual
properties including patents, copyrights and materials on behalf of the University”; (2)
“procure legal counsel to protect, manage, and develop those properties,” in cooperation
with the University; (3) “manage the proceeds from licensing for the benefit of the
University and the State of Iowa while remaining financially independent and self-
sustaining”; and (4) provide seed funds to develop disclosed technologies and financial
support to University start-ups (including rent and fees for professional consulting).
(Iowa State University Research Foundation, Inc., “About Us”).
Still other public Universities have created research foundations that -- like the
SUNY RF -- perform for the University not only tech transfer functions, but also the
broader research grant administration process itself. Examples include:
In its 2009 “Environmental Scan,” the RF said that it had reflected on various
independent consultant reports, a satisfaction survey of SUNY “customers,” and internal
RF data, and summarized its strengths and weaknesses as follows:
Strengths
• “The wide-ranging breadth and depth of the talents and experience of SUNY
faculty are the core strength of the RF.” (Of course, this is an achievement of
SUNY, not the RF.)
• “The long-term tenure of staff within the RF in its Central office and on the
campuses.” (This is important.)
• “Autonomous private sector nature of the RF.” (Again, a fact, not a performance
achievement.)
• “Unified policies, systems and controls, i.e., the RF coordinates all affiliated
corporation agency fund and sponsored program administration.” (A fact, not an
achievement.)
• “The lack of clearly articulated roles and responsibilities between the RF Central
Office and the campuses sometimes inhibits the ability of SUNY to be as
responsive as necessary to sponsor demands.” (What does the RF suggest as a
remedy?)
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• “Minimal inter-campus research collaboration. While occasional inter-campus
collaborations have occurred, the RF has not focused its efforts on encouraging
synergies across the SUNY system.” (Why not? This problem has subsisted for
decades. Note, however, the RF’s new “Find a Scholar” initiative.)
• “RF’s current roles are unclear in both tech transfer and economic development,”
and there is “lack of engagement with campuses…as well as between
campuses.” Also, a “[d]isproportionate amount of resources are allocated to
disclosure and patent management taking away from activities that build
relationships and potential revenue.” (What has the RF done to address this?)
• “The current funding model for the RF Central office creates disincentives to
SUNY campuses with low sponsored-program activity [whose RF costs]…often
exceed their indirect cost recoveries…The funding model also has limited
revenue sources – reimbursed indirect cost, investment income, and royalty
income. The RF does not have access to capital to make long-term investments,
provide gap funding for commercialization of intellectual property, or stimulate
economic development programs.” (What initiatives does the RF propose? Note
the recent gap funding plan.)
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11.C. Governing Body.
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• University of Kansas Medical Center Research Institute – 23 members: 6
members of the University administration (the Chancellor of the University of
Kansas, the Executive Vice Chancellor and Vice Chancellor for Administration
of the University of Kansas Medical Center, the Senior Vice Chancellor & Dean
of the University of Kansas School of Nursing & Allied Health, the Associate
Vice Chancellor of Finance of the University of Kansas Medical Center, the
Vice Chancellor for Research of the University of Kansas Medical Center); 6
faculty members and 11 outside persons.
When compared to this peer group, the composition of the SUNY RF Board
appears fairly typical.
The Boards of such organizations have been held to ever-higher standards for
the duties of care, loyalty, and confidentiality. Nonprofit Boards are legally required not
simply to defer to management, to await information, and to pursue management’s
recommendations. But, on the contrary, to be active inquisitors, to require information
they feel they need to govern, and to exercise independent business judgment. This is
now recognized as not just “best practice,” but as “standard practice” among nonprofit
Boards. Indeed, some courts have set the bar of expectations very high, and have
faulted Boards, even when they weighed various strategic alternatives, for not being
assertive enough in really vetting strategic alternatives. (See e.g., Manhattan Eye, Ear &
Throat Hospital v. Spitzer, 715 N.Y.S.2d 715 (Sup. Ct. N.Y. 1999)). (See generally,
American Bar Association, “Guidebook for Non-Profit Directors” (2002); “Ten Best
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Practices for Measuring the Effectiveness of Non-Profit Healthcare Boards,” MODERN
HEALTHCARE (December 2006)).
Unfortunately, that is not at all the way the key participants describe the
functioning of the RF. I interviewed a significant subset of the total Board; every one of
them said they thought the Board’s role and functions were not being properly managed.
Among the chief complaints:
• They said that RF executives “manage” (i.e. “manipulate”) the Board rather
than informing and serving it. Management is said to “dole out information as if it
were gold,” and that at times it seems to Board members that management
“wants us to be in the dark.” “The whole place is a mushroom farm.”
• They complained that the Board does not meet together in person, so there
develops little sense of shared “ownership” of the enterprise and of problem-
solving.
• The tone of Board meetings is that instead of being accountable to the Board,
and mildly concerned that it should be answering its questions, the RF
management is always “minimizing the discussion” and “just going through the
motions.”
• Several Board members said they were offended that when they did ask tough
questions; they were treated as if that was inappropriate. One experienced
Board member, who has served on other Boards, said he had never seen
anything like the RF dynamic.
Board members also expressed concern that, as a result, the entire perception of
the RF among outside constituencies, and even within SUNY, was that it was a “one-
man fiefdom” dominated by the CEO. They are concerned that everyone talks about
“John wants x” or “John will not support y,” as though the Board almost does not exist.
Also, many commented that the CEO, despite hard work and significant abilities,
leaves the impression in many that he “has his own agenda,” and is “dedicated primarily
to his own survival and building up his own power.” Board members complained that he
does not display the attitude of actually working for and reporting to the Board at all.
Instead, rather than being the servant or emissary of the RF Board, he cultivates “games
within games” with various political constituencies, that he is not seen as a “straight-
shooter,” and, on the contrary, is “the guy who taught Machiavelli.” This is not a good
image for an organization of the public stature and role of the SUNY RF.
I asked the RF CEO about these perceptions. He said they were unfair, and that
he and other executives do try to keep the Board informed. He ascribed these
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perceptions to the multiple roles that the RF performs, and to the fact that he is often
asked to liase with, or build bridges to, other constituencies, and so naturally he has
conversations that may then be distorted as they are re-told.
Nevertheless, two Board members went so far as to say that they were worried
about their own legal liability, since they simply did not know enough as Board members
to be sure that if a problem arose, they could really address why the decision had been
made and what facts it was based upon.
The role of the University system Chancellor or President varies among the
major public University-affiliated research foundations. In some (such as the KU Center
for Research, University of Florida Research Foundation, and University of Georgia
Research Foundation), the Chancellor (or President) is Chair of the Board--but this
seems to be a distinctly minority circumstance. In many more foundations (e.g., the
Florida Atlantic University Research Corporation, Georgia State University Research
Foundation, Georgia Tech Research Corporation, Iowa State University Research
Foundation, Kansas University Medical Center Research Institute, and Wisconsin
Alumni Research Foundation), the Chancellor (or President) is a member of the Board,
but is not the Chair.
• Having the SUNY Chancellor chair the RF Board may blur the distinction or
separation between the two organizations in the minds of the legislature,
sponsors, and public.
• Having the Chancellor serve in this role may be a “lighting rod” for criticism of
SUNY, which is not helpful.
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• Also, because the Chancellor is Chair of the Board, any issue that becomes
severe involving the RF “splashes” back to her. Indeed, this may occur even
before she is aware of the issue as it is passed up the chain of command.
On the other hand, having an entirely independent RF Board Chair carries risks.
The person might be a visionary, interested in and entirely devoted to SUNY, consistent
with the 1977 Agreement and the RF’s corporate mission. But prospectively there can
be no assurance that every future outside RF Chair would possess such qualities. Thus,
whether to retain or relinquish the RF Chair role is a tough choice that the Chancellor
should carefully consider.
There is the additional issue of whether it is appropriate, given the overall SUNY-
RF relationship, for the RF CEO to serve as Secretary to the SUNY Board, and thereby,
as the recorder of its deliberations, the person who briefs the Chair on many issues and
informally interprets the Boards’ wishes to individuals and constituencies. The RF has
its own priorities, and as this Report amply demonstrates, its own strains with SUNY.
Thus, it seems more than a bit questionable whether the Secretary of the SUNY Board
can be perceived as fair and unbiased in all his dealings, while he wears the other
important hat as CEO of the RF. For purposes of these observations, the talent and
integrity of the individual are irrelevant; I assume he would not be performing these dual
functions unless those appointing him felt he was exceptionally able to discharge them,
but that is not the point. Many people involved with SUNY and the RF expressed
concern and consternation about this arrangement, and in effect said they felt
“intimidated” in dealing with the RF because of this dual and potent role with SUNY. I
suggest that this appointment be reconsidered.
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RECOMMENDATIONS
Here are about 50 specific recommendations to improve the SUNY-RF relationship and
the success of SUNY research:
1. Pre-Award Activity.
1.1. The growth in SUNY-RF research has not kept pace with leading institutions.
SUNY should determine whether it wants the RF to play any new or different role
regarding pre-award development of research resources. If there is no natural role for
the RF, then SUNY should energetically explore other methods to increase cooperation
among campuses in identifying and exploiting sponsor opportunities.
1.2. The RF’s new “Find a Scholar” initiative, using the “Community of Science
Software,” and similar initiatives to link SUNY researchers on different campuses, should
be energetically supported. But in addition, SUNY should financially incentivize research
administrators and researchers across campuses to work together, given that such
expertise at SUNY is distributed widely across disparate campuses, and that it takes
effort to identify collaborators.
1.3. SUNY properly does not want to try to pick research areas that will be
“winners” versus “losers” and force faculty into these areas. But any University with
limited resources needs to target prospects for growth. SUNY could benefit from a more
explicit, targeted “center of strength” or “critical research nucleus” approach. It should
seek to allocate “state line” support specifically targeted at high-yield research areas.
2. Grant Administration.
2.2. SUNY and the RF should convene a small HR group to consider whether
more flexible categories of employment and varying fringe benefit rates could save
money without hurting recruitment to any meaningful extent.
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3. Disputes and Litigation.
3.1. Likewise, RF Counsel and the major campus counsel should execute a
simple two-page “Operational Policy” or “MOU” about how they will routinely collaborate
in decisions on the avoidance, assertion, compromise, settlement or litigation of claims.
Currently, there is a sense of disorder (or at least a lack of coordination) on some
sensitive matters.
3.2. The RF should consult more closely with SUNY when engaging private
counsel and instructing them on strategy, so they respond to SUNY as well.
4. Compliance Functions.
4.1. The Research VP’s compliance initiative, begun in the summer of 2010,
should be rigorously pursued and assessed. A report on specific steps should be
requested.
4.2. Given the high current sensitivity and enforcement activity in the area of
effort reporting, and the complexity of achieving compliance within the dissociated
SUNY-RF structure, the RF and SUNY’s four health science centers should jointly
develop a protocol clarifying their respective responsibility for elements of effort reporting.
4.3. Likewise, the RF and SUNY should develop a joint policy defining
responsibilities to address non-compliance events, changes in budgets or protocols, etc.
(a) assess whether there are improvements that could be made to its effort
reporting system, including increased automation, better integration with financial
systems, or other “hardware/software” changes that would enhance compliance
capabilities (RF says it has just begun such an initiative);
(b) review its existing suite of policy/procedure documents and update them to
the extent necessary;
(c) determine whether roles and responsibilities are adequately assigned and
explained;
(d) review existing training materials and whether they adequately provide faculty
and departmental administrators with a basis to understand and follow applicable rules;
and
(e) assess existing monitoring capabilities and whether they should be enhanced.
5.2. SUNY needs a plan specifically to recruit faculty who work in fields where
commercializable inventions are more likely than not.
5.3. SUNY and the RF should jointly develop a protocol clarifying their
respective roles in determining tech transfer decisions (e.g., sell, license, package, or
hold).
5.4. SUNY should task the VP for Research of each major campus with
reporting now on the obstacles of tech transfer, the current invention pipeline, and
targets for tangible results.
5.6. SUNY and the RF should pose concrete, aggressive, but achievable, goals
for increasing the long-standing low level of royalty revenues.
5.7. SUNY should consider establishing a “single portal” that the industry can
use to access SUNY tools for finding faculty researchers and potential collaborators
(similar to the University of California’s “UC Discovery Grant” website). In addition, the
RF could develop a service, similar to the one created by the Iowa State University
Research Foundation, that allows companies to register to receive SUNY emails about
new technologies related to their areas of interest.
5.8. SUNY should work to ensure that the “regionalization” effort succeeds by
working with the RF on its proposal for a fair reimbursement formula for the major
campuses that provide the tech transfer services (otherwise, this initiative will fail).
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5.9. Each SUNY campus that is associated with an incubator/accelerator
(Downstate, Upstate, Stony Brook) should be asked to propose a plan to increase their
current modest level of success.
5.11. RF should work with SUNY to develop a start-up investment fund for
SUNY inventors.
5.12. SUNY should mine its alumni network to try to establish linkages with
technology executives who have business interests related to SUNY researchers’ work.
5.13. SUNY should seek ways to celebrate and publicize faculty tech transfer
successes. Faculty are competitive. This helps create a tech transfer culture.
6. Legal Support.
6.1. The hostile manner of prior RF General Counsel relations to SUNY must not
be allowed to recur. This is a broader cultural issue than an individual one and RF’s top
management should be held accountable for correcting it.
6.2. It might help achieve a better “cultural” concordance between the RF and
the campuses’ counsel if they met together periodically to address recurring issues.
6.3. More broadly, top RF leadership needs to change the legal department’s
attitude toward SUNY and reinforce to legal staff that the RF is a service organization to
SUNY. That mission does not mean that professional standards are abandoned, but it
does frame the approach that lawyers take to serving the client.
6.4. Some RF legal staff are especially knowledgeable and helpful to SUNY and
should be rewarded for that level of performance.
6.5. There is significant risk to the RF and SUNY if they do not require their
respective counsel to cooperate fully on sensitive matters and investigations. They
should be required to do so absent demonstrable, unique reasons for not doing so.
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7. Affiliated Entities and Ventures.
7.2. The RF and SUNY should jointly review the affiliates and consider which
might be significantly improved or made more effective, and by what means. Some
seem to be “just coasting.”
8.1. The RF should continue its existing efforts to operate efficiently, to develop
additional lines of revenue, and to report transparently to SUNY on its finances. The RF
and SUNY should explore whether the future scope of operations that SUNY expects the
RF to undertake can be supported purely on the basis of the current charge (of 2.7% for
“centralized’ campuses and 3.7% for “decentralized” campuses). In fairness, the service
expectations for the RF need to be realistically calibrated in light of the revenue provided
to the RF.
8.2. The RF should explore whether there are fair methods of abating the current
overhead charge for grant funds that create no revenue margin.
8.4. The RF should share with SUNY a realistic, long-range financial plan for
how the RF will fund its accrued pension benefits, maintain and upgrade IT systems, etc.
and what implications this has for its necessary charges. It has called the trend
“alarming.” What does it recommend?
8.6. The RF reports that indirect cost recovery on New York State/local
sponsored research is very small--3 to 4%. In some instances, such research
nevertheless serves SUNY’s purposes (supporting some overhead, supporting faculty,
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enhancing rankings). In other cases, grants may lead to hidden costs (unsupported
faculty or facilities in future years). The RF and SUNY might wish to assess more
specifically the desirability of various State-supported grants.
8.7. SUNY should recognize that RF central office staff are performing a
dizzying array of functions, which constantly grow, with a relatively low and stable
number of employees. Priorities must realistically be set in seeking new RF functions.
9.3. The Board should hold the RF CEO accountable for improving/changing
what is widely seen as a “culture of secrecy,” and the overall quality and tenor of SUNY-
RF interaction and communication within a defined time period. That should be one
significant factor in retention and compensation.
11.1. The RF should significantly increase the direct involvement of its Board in
oversight of its activities. For example:
11.1.b. RF staff should give the Board far more information in advance of
Board meetings.
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11.2. The RF should comply with IRS requirements concerning its
communications with SUNY to assure compliance with SUNY goals.
11.3. The Chancellor should consider whether it is realistically feasible for her,
given her myriad other obligations, effectively to Chair a Board of a large business
enterprise, such as the RF, or whether it is preferable that she serve on, but not Chair,
the Board.
11.4. The SUNY Board should reconsider whether it is appropriate to ask the
CEO of an outside organization (RF) that has substantial business dealings with SUNY
to serve as Secretary to the SUNY Board and as interpreter of its intentions to SUNY
management.
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SUNY – RF REVIEW: PERSONS INTERVIEWED
General
Sherry Holland Counsel & sherry.holland@rfsuny.org (518) 434-7045
Secretary
Intellectual
Heather Hage Property heather.hage@rfsuny.org (518) 434-7045
Counsel
Board Member
and Chair of
Steven Fischer steve@fischerpoint.net (518) 469-2083
Audit
Committee
samuel.stanley@stonybrook.ed
u
Samuel Stanley, MD Board Member (631) 632-6265
carol.londoiro@stonybrook.edu
(assistant)
VP for Admin.
Lynn Manning lynn.manning@rfsuny.org (518) 434-7107
& HR
Director of
Gregory O’Connor Corporate gregory.o’connor@rfsuny.org (518) 434-7153
Strategic
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Persons Title E-mail Phone
Initiatives
Deputy
Joshua Toas General joshua.toas@rfsuny.org (518) 434-7045
Counsel
Rich Agnello
Asst. VP
Timothy Jennings Ofc. of General tim.jennings@rfsuny.org (518) 434-7045
Counsel
VP Sponsored
garrett.sanders@rfsuny.org
Garrett Sanders Programs (518) 434-7130
Admin.
Legal Services
Monique Westbay Manager & Sr. monique.westbay@rfsuny.org (518) 434-7051
Paralegal
Labor &
Joanmarie Dowling Employment joanmarie.dowling@rfsuny.org (518) 434-7046
Counsel
VP for Info.
Gerard Drahos Services Chief gerard.drahos@rfsuny.org (518) 434-7205
Info. Officer
SUNY – Central
System
Kathy Preston kathy.preston@suny.edu (518) 320-1193
Administration
Deputy Provost
and Vice
James Ketterer Chancellor for james.ketter@suny.edu (518) 320-1313
Policy and
Planning
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Persons Title E-mail Phone
SUNY – Downstate
Executive Vice
Ivan Lisnitzer President & ivan.lisnitzer@downstate.edu (718) 270-1234
COO
SUNY – Stony
Brook
samuel.stanley@stonybrook.ed
u
Samuel Stanley, MD President (631) 632-6265
carol.londoiro@stonybrook.edu
(assistant)
VP Research &
john.marburger@stonybrook.ed
John Marburger, MD Professor of (631) 632-7932
u
Physics
Chief Executive
Officer of The
Clinical
Ellen Cohen ellen.cohen@stonybrook.edu (631) 444-2055
Practice
Management
Plan
Director,
Technology
Chester Bisbee,
Licensing and chester.bisbee@stonybrook.edu (631) 632-9009
Ph.D.
Industry
Relations
Director,
Human
Lynn Johnson lynn.johnson@stonybrook.edu (631) 632-6151
Resource
Services
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Persons Title E-mail Phone
VP, Managing
Director,
John Weyhenmeyer, james.weyhenmeyer@rfsuny.or
Technology (518) 434-7121
Ph.D. g
Accelerator
Fund
SUNY – Upstate
francess@updstate.edu
Stewart Wright CFO (e-mails to be sent to his (315) 464-6530
assistant)
Steven Goodman,
VP – Research goodmans@upstate.edu (315) 464-4515
Ph.D.
Sr. VP,
Steve Brady Administration bradys@upstate.edu (315) 464-4510
and Finance
Professor,
Microbiology (315) 464-5419
Steven Taffet, Ph.D taffets@upstate.edu
and
Immunology
Professor,
Christopher E. Cell and
turnerce@upstate.edu (315) 464-8598
Turner, Ph.D. Developmental
Biology
Professor,
Biochemistry (315) 464-8713
Mark Schmitt, Ph.D. schmittm@upstate.edu
and Molecular
Biology
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Persons Title E-mail Phone
SUNY – Buffalo
President (to
John Simpson simpson@buffalo.edu (716) 645-2901
retire 1/15/11)
VP – Health
David Dunn, MD Sciences Dept. vphs@buffalo.edu (716) 829-2100
Provost, Exec.
Satish Tripathi, VP of tripathi@buffalo.edu (716) 645-2992
Ph.D. Academic
Affairs
Alexander Interim VP for anc@buffalo.edu (716) 645-1053
Cartwright, Ph.D. Research
SUNY –
Binghamton
Interim VP for
Bahgat Sammakia bahgat@binghamton.edu 607-777-6880
Research
SUNY – Albany
Director of
J. Eric Smith Auxiliary jsmith3@uamail.albany.edu (518) 442-5950
Services
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